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VOL. 9 | NO. 32 | Saturday, August 6, 2016

Mediation Confidential

By Bill Dries

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One of the two mediators in the Overton Park Greensward controversy says although there was no settlement produced by the mediation in June, the process nonetheless paved the way for its resolution in July.

Longtime associates, attorney David Wade and former Tennessee Supreme Court Chief Justice Janice Holder, conducted mediations between the Memphis Zoo and the Overton Park Conservancy regarding use of the Greensward.

(Memphis News/Andrew J. Breig)

“I’m convinced that the work in the mediation process is why it got settled,” said attorney David Wade. “Everybody knew this had to get resolved. The city of Memphis is too big to get bogged down in something like this. We had to get it resolved and get past it.”

Wade and former Tennessee Supreme Court Chief Justice Janice Holder were the mediators in four-way talks between the Memphis Zoo, Overton Park Conservancy, Memphis City Council and city administration.

All four were parties in what began as a Chancery Court lawsuit filed by the zoo in January.

The zoo sought undisputed control of the Greensward, so the conservancy filing a counter-claim.

“The idea of having the mediation was generated before the lawsuit was filed. But there was very much a lawsuit,” Wade said. “The mediation itself was not conducted under rules that apply to mediations coming out of a lawsuit.”

When the June 30 deadline for mediation to produce a settlement ran out, Memphis Mayor Jim Strickland proposed a settlement. But talks outside mediation overseen by council member Bill Morrison began, and that ultimately led to an agreement July 19 among all of the parties that was different than Strickland’s proposal.

Morrison pointed the discussions away from boundaries for the Greensward and toward how many additional zoo parking spaces in front of the zoo’s main entrance all sides could agree on.

The earlier mediation process was confidential and that confidentiality remains in place. Because of that, Wade could not talk about any of the discussions, any of the rationale behind decisions or any of the decisions made.

Holder would not talk in any way about the specific mediation effort, citing the confidentiality guidelines.

“It was a different sort of mediation,” Wade did allow. “It was something new in my experience, the way it was handled because there were so many issues that popped up and you would have to deal with them from time to time. Quite often, we’d have conferences with people on the telephone.”

Wade said he and Holder had to be creative in the case of the Greensward.

“It was unusual because we would meet separately with the parties. ... We would meet with them together,” he said. “Sometimes we would just meet with two of them in an effort to try to understand what the difficulties are. You come to learn things that way.”

Wade and Holder were suggested as mediators by Strickland, an attorney who had suggested mediation to resolve several controversies during his two-term tenure on the council.

Wade and Holder are certified mediators, a process that involves 40 hours of instruction and “a pretty good idea of human relations,” by Wade’s definition.

Mediation has a relatively recent start date as a formal process. But informal mediation has long been a part of being an attorney.

“I think the really good attorneys used to call each other up and sit down and say, ‘Let’s figure out how to resolve this case’ – and they could do that,” Wade said. “That was before mediation was such a popular device. Now you engage a mediator and still the good lawyers get in and they try to figure out how to resolve the case.”

As a Shelby County Circuit Court judge in the 1990s, Holder implemented a pilot mediation program before the Tennessee Supreme Court set formal rules and qualifications for mediators.

She describes it as “essential.”

“It allows parties to come to their own resolution of the issues that they are litigating,” Holder said. “The value to that is that often parties can agree to do things that the court could not order them to do. It also allows us a full discussion of what is going on in a case outside a very structured courtroom experience.

“That has value,” she said. “It has value in reducing the emotional content of a case and allows people to get out on the table what they want to say in a way that is not structured by questioning and cross examination.”

Wade said sometimes the ability to tell their side of the conflict is enough. Other times the process is a reality check.

“The mediator can ask real tough questions, which might be the questions say a judge or a jury might be curious about if you try the case,” he said.

Wade said he tends to be “an evaluative mediator” who tells people what he thinks in a mediation.

“I always caution them to make sure they listen to their lawyers and tell them they know the facts a lot better than I do.”

But Wade said a mediator is a presence that all sides tend to listen to if the process is working the way it should.

“I think our Supreme Court, our judges realize that the best people to decide their cases are the people themselves,” he said. “Instead of having a stranger do it for them, they should tackle the problem and figure out how to resolve it. … If you settled your own case, you are the better for it.”

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